St. Edmundsbury and Ipswich Diocesan Board of Finance v Clark (No. 2)
|England & Wales
|LORD JUSTICE RUSSELL,SIR JOHN PENNYCUICK
|18 December 1974
|Judgment citation (vLex)
| EWCA Civ J1218-3
|18 December 1974
|Court of Appeal (Civil Division)
 EWCA Civ J1218-3
In The Supreme Court of Judicature
Court of Appeal
On appeal from Order of Mr Justice Megarry.
Lord Justice Russell
Lord Justice Orr (Not present) and
Sir John Pennycuick
Mr. J.E. VINELOTT, Q.C. and Mr. SPENCER G. MAURICE (instructed by Messrs. Finnis, Christopher, Foyer & Co.) appeared on behalf of the Appellant (Second Plaintiffs).
Mr. JEREMIAH, Q.C., Mr. GAVIN LIGHTMAN and Mr A.G. BOYLE (instructed by Messrs. Cameron, Kemm, Nordon) appeared on behalf of the Respondent (Defendant).
Sir John Pennycuick will deliver the Judgment of the Court.
This is an appeal from an Order of Mr Justice Megarry dated the 26th July, 1973 (reported at 1973 Weekly Law Reports, 1572). The Plaintiffs in the action are St. Edmundsbury and Ipswich Diocesan Board of Finance and the Parochial Church Council of the Parish of Iken. The Defendant is Mr Gabriel Bertram Clark. Summarily, the action is concerned with the extent of a right of way over a 30-yard long strip of land leading to Iken churchyard over former glebe land conveyed by the Bishop of St. Edmunsbury and Ipswich to Mr Clark in 1945, the Plaintiffs claiming that this is a right of way for all purposes and Mr Clark claiming that it is a right of way on foot only. Mr Justice Megarry decided this issue in favour of Mr Clark. The present appeal is by the Parochial Church Council only. In the course of a full and careful judgment Mr Justice Megarry, who had visited the site, made meticulous findings of fact concerning the site and the user of the strip. Upon such extracts from the evidence as have been read to us these findings appear to us to be unexceptionable, and we propose in this judgment to quote from them at length rather than attempt to paraphrase them. The findings should be read in conjunction with certain large-scale maps based on the 25-inch Ordnance Survey which were before the Court. We will first quote Mr Justice Megarry's finding concerning the lay-out of the site: "Iken is a small and somewhat scattered village some four miles inland from Aldeburgh. The church stands rather apart from the rest of the village, on the south- east bank of the river Alde, which at this point is flowing north and then east. The church and its churchyard are rather under an acre in extent. They adjointhe former rectory, a substantial house with seven bedrooms, outbuildings and so on. With its grounds and the former glebe, the total area is some 23 acres. The approach to this complex is by a narrow public highway known as 'Church Lane', running north for some 600 yards from its junction (at Church Corner) with an unclassified road which runs in a generally east and west direction. Church Lane comes to an end nearly 300 yards before reaching the banks of the Alde where it flows eastwards: and it is at this northern end of Church Lane that the main area of disputes is located. For reasons that will appear, the church authorities put up the whole of their land, save the church and churchyard, for sale by auction on July 31st, 1945. The defendant was the successful bidder, and the contract was duly completed by two conveyances dated December 31st, 1945. The land bought by the defendant begins some 100 yards up Church Lane, and consists of the whole of the area on the lane, between the lane and the river, up to the north end of the lane, and also the whole of the headland north of the top of the lane where the river bends round to the east. The church and churchyard are wholly surrounded by the land bought by the defendant. At the northern and of the lane, there is a way that leads from the lane to the church porch. This is about 100 yards long. It runs north-west in a more or less straight line. For the first third of its length the way traverses what, subject to a contention of the plaintiffs, is plainly the defendant's land; and this third is the 'disputed strip', the principal bone of contention. In due course I shall return to the details of this disputed strip. The remaining two-thirds of the way is within the churchyard, and, being admittedly churchproperty. Comes into the dispute only indirectly".
The sale to Mr Clark was completed by a conveyance dated the 31st December, 1945. The parties are the Bishop (selling as such since the living of Iken was vacant), the Governors of Queen Anne's Bounty (jointing to receive the purchase money) and Mr Clark. The parcels are described as follows: "As the same are more particularly described in the schedule here to and are for the purposes of identification only more particularly delineated on the map or plan annexed hereto and thereon coloured blue to hold unto the purchaser in fee simple subject to the rights of the Coal Commission under the provisions of the Coal Act 1938 and to all rights of way water light and other easements (if any) and to all duties and payments ecclesiastical or civil affecting the same and to the convenants hereinafter contained and subject also to a right of way over the land coloured red on the said plan to and from St. Botolphs Church".
This wording is by common consent inappropriate for the reservation of a new right of way. But it was accepted at the hearing before Mr Justice Megarry that its effect was to convey the disputed strip to Mr Clark together with the surroundings land subject to a reservation of a right of way over the disputed strip. It should perhaps be mentioned that the disputed strip forms part of Ordnance Survey 439, which comprises Church Lane itself, and that Ordnance Survey 439 is not mentioned in the schedule to the conveyance, but we doubt if anything now turns on this circumstance. The sole outstanding issue, as we have indicated, is the extent of the right of way reserved by the words we have quoted from the conveyance.
We will next quote Mr Justice Megarry's findings concerning the condition of the disputed strip at the date of the 1945 conveyance: "With that in mind, I turn to the physical circumstances in the present case existing at the time of the conveyance to Mr Clark in 1945. Church Lane was then undoubtedly a road, narrow and less well surfaced than it is at present, but still a road, and beyond dispute a public highway. At the northern end of Church Lane the disputed strip and then the church path ran out of it in an approximately straight line in a north-westerly direction, at an angle of about 135 degrees. The disputed strip comprised the first 33 yards or thereabouts, and the church path the other 60 yards or so. That much is not disputed in any real degree; but thereafter there is much conflicting evidence, about which I must say something". After referring to a number of photographs which were in evidence, Mr Justice Megarry proceeds: "With all that in mind, and more, I find the following facts. At that time of the conveyance to Mr Clark in 1945, the junction between the disputed strip and the northern end of Church Lane consisted of a hard surface capable of being used by vehicles. Anyone who traveled northwards up Church Lane would find the road curving away to the left, towards the church, through something like a gap in the little to the south of the line of the church path and the rest of the disputed strip. There was no gate there. The road also widened out a bit at that point, so that one could to some extent go straight on for a very short distance before reaching a dead end. If one bore to the left, towards the church, one very soon reached the north way, running approximately north and south, and so at an angle tothe line towards the church. This first section of the disputed strip, between the general line of the western edge of Church Lane and the eastern edge of the north way, was a mere seven yards long, or thereabouts. Road maintenance men, repairing Church Lane, did some maintenance work there, and traces of tar could be found a little beyond, in the first stretch of the disputed strip short of the cross-roads formed by that strip and the north way".
Mr Justice Megarry then referred to the erection by Mr Clark of a field gate and wicket gate at the south end of the disputed strip in 1947 and the moving back of those gates towards the church by a few yards in 1948, and proceeds: "Once the north way had been crossed, however, the terrain for those approaching the church was different. The north-westerly two-thirds of the disputed strip lay between chestnut trees, three on the south-west and two on the north- east. Two of these trees stood opposite each other on each side of the disputed strip where it ended, just outside the churchyard, and two more some 13 yards away, opposite each other on each side of the disputed strip and not far from the crossroads formed by the disputed strip and the north way. The remaining tree was on the south-west side of the disputed strip, on the edge of the crossroads, about seven yards south- east of the nearer tree of the nearer pair. The pair next to the church-yard stood some 11 to 13 feet apart. Measurements made in my presence show that today at waist height the trees are 12 feet 8 inches apart; at ground level the trunks are 11 feet 9 inches apart, but from exposed root to exposed root they are 10 feet 4 inches apart. The pair of trees nearer to the crossroads are a little closer together, though not by more than about15 inches. Between the trees at the end of 1945 there ran a path, consisting mainly of trodden earth. It was covered with rotting leaves, and was a little 'dished', in that it was lower in the centre than at the sides. Beneath the leaves there seems to have been some gravel or shingle, and perhaps some sand; "but however well covered the path may have been before the war, by 1945 the covering was irregular...
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